Changes they 'r a comin'

Par Me.Linda Hammerschmid
le 1 novembre 2015

The powers that be have decided to modify, yet again, the Quebec Civil Code of Procedure [C.C.P.] which will come into effect January 1, 2016. So it seemed only fitting to let you in on a few of the more important changes and new arrivals in the domain fondly known as Family Law.

You should first be aware that every time a Government changes existing legislation, under the guise of making Justice more accessible and less costly, I shudder. What we practitioners take away from such pronouncements, made annually I might add, is the unsettling certainty that much of the Jurisprudence that came out of the past legislation will now change, meaning it could be many years before the new concepts or interpretations of the new wording make it through the Court system to become definitive. In the meantime, it can be a free-for-all of pleadings and Judgments rendered that may or may not make sense.

In other words, we start all over again to create new Jurisprudence on which we can rely and give advice - so much for accessibility and cost effectiveness.

Much of the new C.C.P. has to do with “kinder, gentler wording” to paraphrase one past American President. Really important changes, such as substituting “notified” for “served” and “Case Protocol” [sounds more FBI/CIA than Divorce Court] instead of

“Timetable”, figure in this new Code.

The main intended focus of the new code is to promote settlements by mediation, arbitration, or dispute resolution. Of course I have oft wondered, if couples can get along and agree, why are they splitting? Nonetheless, as of January 1, 2016, all parties in Family Law cases must “consider” private prevention and resolution processes before going to Court. If one does not choose this avenue, that decision may come into play as an issue of proportionality and lead to a condemnation in legal costs [which by the way don’t mean what they used to].

Some of the more prominent modifications to our Family Law, aside from strictly procedural changes, are as follows:

Obligation to Inform

To date, we have only had varying Case Law to ensure that both parties keep each other informed. Now the Law stipulates that at all times each party is duty bound to cooperate and ensure that all relevant evidence is preserved, “relevant” being one of those words which will require interpretation. This means that if at the beginning of the case a party is earning $75,000.00, but during the time it takes to complete the case that amount increases [or decreases], that party must notify the other of the change or suffer the consequences. The question arises, what if a party is in the process of a transaction which may or may not increase income/assets but which is not yet a done deal? Well only the future Case Law will determine how clairvoyant one is actually obligated to be. Parties will invariably fight over this obligation [was it or was it not done].

Result: More legal fees, not less.

Experts

It is now going to be legislated that there can only be one (1) expert [be that joint or not], unless the Court authorizes another expert to act. This to me flies in the face of due process as each party has a right to present a full and entire case in their own manner. Forbidding, unless one can convince a Court otherwise, a party from having their own expert is to me questionable. And of course this will necessitate petitioning the Court to obtain the authorization and possibly appeal that decision if you are foreclosed from having your own expert.

Result: More legal fees.

Sanctions

The goal is to force cooperation [not in itself a bad thing but somewhat of an oxymoron] by condemning an uncooperative or delaying party to pay costs. What those costs are is another area newly open to Court battle and Case Law, since the words “provision for costs” no longer appear in the Code [those who are married may have an advantage here since Quebec cannot pass legislation that contradicts the Federal Divorce Act, which makes reference to awarding sums for whatever reason deemed needed which can include legal fees].

Result: More legal fees for someone.

Examinations Out of Court

These question and answer scenarios, which to date, take place in the presence of a stenographer under oath outside the Courtroom, can now also be done in written form. One side prepares a series of questions. The other side answers them in a sworn document. The problem: it is very difficult, if not impossible, to gauge a party’s level of credibility from paper. Also, often in examinations, one question can lead to another, not originally considered prior to the answer being given, or results in a totally new area of fact to explore. This won’t be the case if the questions are submitted in written form.

Moreover, I predict this will cost clients a great deal more in attorney fees than if the examinations were undertaken the old-fashion way.

Lastly, oral examinations may now be only 3 hours in duration, or exceptionally 4, otherwise the Court must order a longer time. As you can see, one may have to go to Court more often than before to obtain various permissions en route to the end of the case. Experts and examinations are but 2 such examples.

Result: Potential for more fees for clients.

Exhibits

Although we have this in a way now, lawyers are now obligated to deposit “Booklets/Binders” of a party’s Exhibits, whereas before one just made the appropriate copies.

Result: More fees.

De Facto Spouses: Patrimonial Rights

This may be the single largest change to the Code under Family Law. Now non-married folks can make applications with regards to the property [patrimony] held by their “spouses”.

This is going to inundate lawyers till the next millennium. We can always count on the Government to create work for us legal beagles.

While the Court always had discretion, it is now crystal that a Judge can refuse to render Judgment on your Consent, in whole or in part, and may even convene the parties together or separately to explain why such and such a clause was or wasn’t included in your document.

Result: More attorney fees.

Attributing Income

Again, Case Law already also covered this topic, but now the Court, via Article 446 C.C.P., may supplement, to the income declared by a party, a notional income which can be derived, for example, from assets and income that the sale of such assets would generate, if sold, or from the retained corporate earnings in a company owned by a party. This can go so far as to include undeclared corporate dividends. This article will certainly cause a lot of debate and spill much ink.

Result: More Court battles equals more attorney fees.

Conclusions

- Everyone should get a pre-nuptial agreement [whether getting married or just living together].

- Everyone must know the finances of the other at all times.

- Most everyone may end up paying more, not less as was intended by the Government, in attorney costs.

But don’t blame the lawyers. This is a direct result of your hardworking MNAs. Remember that when you receive your lawyers’ bills, write your National Assembly member to complain, not us!